Bombay High Court
Sopan Bhausaheb Gunjal vs The State Of Maharashtra on 20 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
PPD
1
APEAL.615-07JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.615 OF 2007
1. Sopan Bhausaheb Gunjal,
23 yrs,
2. Mrs.Sitabai Bhausaheb Gunjal,
46 yrs,
3. Bhausaheb Kisan Gunjal,
53 yrs,
All R/o. Sulewadi, Tal. Sinnar,
Dist - Nasik. ig ..Appellants
[Orig.Accused Nos.1, 3 & 4]
Versus
The State of Maharashtra. ..Respondent
WITH
BAIL APPLICATION NO.1577 OF 2012
IN
CRIMINAL APPEAL NO.615 OF 2007
Sopan Bhausaheb Gunjal. ..Applicant
[Orig.Accused No.1]
Versus
The State of Maharashtra. ..Respondent
....
Mr. P.R. Arjunwadkar i/b. Mr. B.P. Abhale, Advocate for the
Appellants.
Mr. D.P. Adsule, APP for the Respondent - State.
....
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE OF RESERVING
JUDGMENT : 03RD DECEMBER, 2012
1 / 21
APEAL.615-07JUDGMENT.doc
DATE OF PRONOUNCING
OF JUDGMENT : 20TH DECEMBER, 2012
JUDGMENT: [PER A. R. JOSHI, J.]
1. Heard rival arguments at length on earlier dates on the
present Criminal Appeal preferred by the appellants/orig.accused
Nos.1,3 & 4 challenging the judgment and order dated
30.4.2007 passed by the Adhoc Additional Sessions Judge-3,
Nashik in Sessions Case No.156 of 2006. By the impugned
judgment and order, the appellants were convicted for the
offence punishable under Sections 302, 304B and 498A read
with Section 34 of IPC. For the offence punishable under Section
302 of IPC, they were sentenced to suffer life imprisonment and
to pay fine of Rs.1000/-each, in default to suffer RI for two
months each. For the offence punishable under Section 304B
IPC, they were sentenced to suffer RI for seven years each. For
the offence punishable under Section 498A IPC, they were
sentenced to suffer RI for three years each and to pay fine of
Rs.1000/- each, in default to suffer RI for two months each. All
2 / 21
APEAL.615-07JUDGMENT.doc
the substantive sentences were directed to run concurrently. By
the said judgment and order, original accused No.2 was
acquitted of all the charges. The State has not preferred appeal
against the acquittal of said original accused No.2.
2. The case of the prosecution, in nutshell, is as under :-
Victim Kalpana and accused No.1 Sopan got married
with each other on 2.5.2005. Appellants/accused Nos.3 & 4 are
the parents of appellant/accused No.1. Acquitted original
accused No.2 is the brother of appellant/accused No.1. PW-3
Pandharinath Ugale is the father of victim Kalpana. Agricultural
lands of said complainant PW-3 Pandharinath and of the family
of accused, situate adjacent to each other at Sulewadi, Taluka -
Sinnar, District - Nashik. So also family of the accused was
cultivating the land of said complainant PW-3 Pandharinath for
years together on lease, and accordingly their relations were
cordial. Due to such acquaintance, marriage of Kalpana was
fixed with appellant No.1 and it was so performed in May, 2005.
After marriage, deceased Kalpana started residing in the family
3 / 21
APEAL.615-07JUDGMENT.doc
of appellants at her matrimonial house which situates in the
agricultural land of the appellants and situates adjacent to the
agricultural land of her father Pandharinath (PW-3).
3. Initially after marriage Kalpana was treated well.
However, after one month or so the quarrels started on account
of demand of Rs.2 lakhs from father of victim Kalpana.
Apparently said demand was for purchase of motorcycle and
tractor. On this count, Kalpana was being ill-treated and
harassed by all the appellants. At times, Kalpana was beaten.
Kalpana had narrated such treatment to her parents and other
relatives whenever she used to meet them.
4. It is also the case of prosecution that on 5.8.2005
victim Kalpana met her mother Manda (PW-4), when they were
working in the agricultural field. Victim Kalpana complained to
her mother regarding ill-treatment meted out to her at her
matrimonial home on account of demand of dowry. On that
evening, after work Kalpana and her mother Manda returned to
their respective homes. On the next morning at about 7:30 a.m.
4 / 21
APEAL.615-07JUDGMENT.doc
appellant/accused No.4 - father-in-law of Kalpana visited the
house of Pandharinath - father of Kalpana and informed that
Kalpana was missing since early morning. Both of them
searched for Kalpana in the near vicinity and also enquired with
the relatives, but in vain.
5. According to the case of prosecution, one Murlidhar
Ugale (PW-2) told Pandharinath that the husband and in-laws of
Kalpana had killed her and thrown her in the well situate in the
agricultural field of said Pandharinath. Arrangements were
made to search the body of Kalpana in the well. The dead body
of Kalpana was taken out from the well and intimation was given
to the police. Accidental death report was lodged. Inquest
panchnama was drawn and dead body was sent for postmortem
and then the dead body was given to the parents of Kalpana and
last rites were performed by her parents on the dead body. On
the next day of finding the dead body, complaint was lodged by
Pandharinath (PW-3) and offence was registered against the
present appellants and also against original accused No.2 Suresh.
During investigation, statements of witnesses were recorded and
5 / 21
APEAL.615-07JUDGMENT.doc
on completion of investigation charge-sheet was filed. The
matter was committed to the Court of Sessions and after trial it
ended in conviction of present appellants, as mentioned above.
6. The defence of the appellant/accused is that of total
denial and false implication. It is also the defence, as transpired
from the tenor of the cross-examination and answers given by
the appellants/accused while recording their statements under
Section 313 of Cr.P.C., that Kalpana was not happy with the
marriage as she was more educated than appellant/accused No.1
- her husband. It is also the defence that one Muralidhar Ugale
from the said village was jealous of the good cordial relations
between the family of appellants/accused and family of the
victim and, therefore, he created a suspicion in the mind of
Pandharinath (father of victim Kalpana) and concocted a false
story of all the appellants/accused ill-treating her and throwing
her in the well after assault. At this juncture, it may be
mentioned that during the arguments still one more defence is
advanced before us that it was accidental fall in the well when
victim had gone to answer the natures call at the early hours of
6 / 21
APEAL.615-07JUDGMENT.doc
the fateful day of 6th August, 2005 and when she was attempting
to take water from the well situate in the agricultural field of her
father, probably she had fallen down in the well as allegedly the
well was not having any constructed wall. Prior to discussing the
arguments advanced on behalf of appellants/accused, certain
factual position is required to be mentioned in order to have
proper perspective of the case and to deal with the arguments
whether the defence, as raised on behalf of the
appellants/accused, is probable on preponderance of
probabilities. Certain admitted factual position is as under :
[i] Marriage of victim Kalpana and appellant/accused No.1 was
performed on 2.5.2005. It was an arranged marriage and for
about more than 20 years the family of appellant/accused
No.1 was cultivating the adjacent agricultural land belonging
to the father of the victim - Kalpana.
[ii] The incident of finding the dead body of Kalpana in the well
situate in the agricultural field of father of Kalpana i.e. PW-3
Pandharinath, happened on 6.8.2005.
7 / 21
APEAL.615-07JUDGMENT.doc
[iii] Father of appellant/accused No.1 i.e. father-in-law of victim
Kalpana had been to the house of her parents in the morning
of 6.8.2005 telling that Kalpana was missing from her
matrimonial house since early morning of that day.
[iv] Dead body of Kalpana was retrieved from the well in the
evening of 6-8-2005 and on the next day i.e. on 7.8.2005
PW-3 Pandharinath lodged his complaint against all the
appellants/accused and also against original accused No.2 -
brother of accused No.1, but initially accidental death report
was registered by police on the night of the incident.
7. From the substantive evidence of Dr.Vasant Karande
(PW-1) who performed the postmortem on the dead body, it is
apparent that the cause of death was shown as cardio respiratory
arrest due to shock due to asphyxia due to drowning. As such
the death of Kalpana was otherwise not under the normal
circumstances. On this aspect, it is to be seen that as per the
case of prosecution during the spot panchnama, one sleeper of
right leg and one plastic container with iron wire were found. On
8 / 21
APEAL.615-07JUDGMENT.doc
this factual position it was suggested during the cross-
examination of PW-3 Pandharinath that victim Kalpana had
slipped in the well which was under construction and it
happened at the early hours of 6.8.2005 when Kalpana left home
for answering the natures call. This suggestion has been denied
by PW-3 Pandharinath.
8. Moreover, the above referred circumstances are
required to be construed in juxtaposition of the substantive
evidence of PW-2 Muralidhar Ugale. According to him, after
knowing missing of Kalpana, he had been to the matrimonial
house of Kalpana in the field and met appellant/accused No.3
Sitabai. On initial enquiries with her regarding missing Kalpana,
she did not reveal anything. However, when said PW-2
Muralidhar raised voice and again enquired, accused No.3
Sitabai replied that they had killed her and had thrown her in
the well of her father. After knowing this, PW-2 Muralidhar
searched PW-3 Pandharinath and narrated him that Kalpana was
killed and thrown in the well belonging to Pandharinath.
Thereafter he along with Pandharainath and other relatives went
9 / 21
APEAL.615-07JUDGMENT.doc
towards the well and thereafter the dead body of victim Kalpana
was extracted from the water. These witnesses noticed various
injuries on the forehead, nose, eyes and ears of the dead body.
The hairs of the victim were loose and were not tide. By that
time the parents of appellant/accused No.1 i.e. accused Nos.3 &
4 and other relatives came to the spot and started taking dead
body for funeral. However, they were objected by PW-3 and his
other relatives and then the police were informed. Thereafter
police persons arrived there and took the dead body to Sinnar
and on the next day postmortem was conducted.
9. On the next day of the incident, PW-3 Pandharinath
lodged his FIR. During arguments, it is brought to our notice that
so far as the substantive evidence of PW-2 Muralidhar is
concerned, there is rather contradiction so far as extra judicial
confession given by appellant/accused No.3 that the accused
persons had killed the victim. On carefully going through the
substantive evidence of those witnesses, it is noticed that the
omission is only to the extent of killing the victim. In other
words, there is no omission as to appellant/accused No.3 making
10 / 21
APEAL.615-07JUDGMENT.doc
extra judicial confession. She had stated that they had thrown
the victim in the well. Here the words "killed" were not used.
We have gone through the reasonings given by the learned trial
Court as appearing in the judgment and order para - 12 and we
do not find that the learned trial Court had committed any error
in appreciating this evidence of prosecution specifically on the
aspect of extra-judicial confession of appellant/accused No.3
Sitabai.
10. On the above aspect, we have also gone through the
substantive evidence of PW-4 Mandabai, mother of the victim. It
is observed that the substantive evidence of PW-2 Muralidhar,
PW-3 Pandharinath and PW-4 Mandabai on this aspect is
corroborating each other and there is no much variance in their
evidence on the aspect as to appellant/accused No.3 making
extra-judicial confession before PW-2 Muralidhar saying that
victim Kalpana is in the well and go and search the well. It is
also same that there was no any other reason for the search party
to search the well unless there was knowledge to somebody as to
victim Kalpana is thrown in the well. It is not at all the case of
11 / 21
APEAL.615-07JUDGMENT.doc
the appellants also even to accept on preponderance of
probabilities that they had at initial stage suggested regarding
the accidental fall of the victim in the well and to search for her.
This is prior to informing the situation to PW-2. On this aspect,
it is significant to note that at about 7:00 a.m. or so on the day
of the incident also accused No.4 had visited the house of
Pandharniath (PW-3) and informed him regarding missing of
Kalpana. This conduct speaks volume and it is to be construed
along with the substantive evidence of prosecution witnesses -
PW-2, PW-3 & PW-4.
11. We have also seen that the substantive evidence of
these witnesses - PW-2 Muralidhar, PW-3 Pandharinath & PW-4
Mandabai is also consistent with each other and it is not
subjected to any deficiency due to any omissions or
contradictions on the aspect of ill-treatment given to victim
Kalpana on account of demand of Rs.2 lakhs for purchase of
motorcycle and tractor and on aspect of victim Kalpana narrating
such events of ill-treatment to her parents. Even it is observed
that according to PW-4 Mandabai she had met her daughter
12 / 21
APEAL.615-07JUDGMENT.doc
Kalpana on the earlier day while working in the field. That time
both women had a talk regarding ill-treatment and on that
evening both went to their respective homes, and from the next
day morning victim - Kalpana was found missing as admittedly
appellant/accused No.4 visited the house of PW-3 Pandharinath
to inform him regarding missing of Kalpana. Again on this
aspect, we have gone through the reasonings given by the trial
Court appearing in paras - 14 & 15 of the judgment and order so
as to come to the conclusion as to the involvement of the
appellants/accused and their knowledge that Kalpana is in the
well and missing from the early hours of 6.8.2005. We do not
find any error in the said reasonings so as to come to a different
view.
12. During the arguments it is argued on behalf of the
appellants that initially it was the case of accidental death as one
Bhanudas Ugale - uncle of the victim Kalpana intimated the
police regarding drowning of Kalpana in the well of
Pandharinath. Apparently, on such intimation as to drowning,
accidental report was lodged by the police. It is further
13 / 21
APEAL.615-07JUDGMENT.doc
submitted that though it was case of accidental fall in the well
but due to vengeful attitude of PW-2 Muralidhar on his
instigation a complaint was lodged by PW-3 Pandharinath on the
next day. In order to appreciate this argument in proper
perspective, firstly it must be mentioned that there is nothing
brought on record even to accept on preponderance of
probabilities that said Muralidhar Ugale was in cross terms with
the appellants/accused. Secondly, said Bhanudas Ugale who had
given intimation to the police on the evening of 6.8.2005
regarding fall of Kalpana in the well and finding her dead, is not
examined. However, apparently on the behest of
appellants/accused the station diary extract was taken on record
vide Exh.15 during the course of the trial. On this aspect, there
is cross-examination of PW-3 Pandharinath and he had
specifically mentioned that he is not aware as to on what count
said Bhanudas intimated the police over telephone regarding fall
of Kalpana in the well and finding her body. According to PW-3
Pandharinath this alleged information given to the police over
telephone was not on his instructions or on his behest. This
14 / 21
APEAL.615-07JUDGMENT.doc
substantive evidence of PW-3 Pandharinath is required to be
construed in the light of another circumstance that simplicitor
Exh.15 cannot be taken as a statement to confirm the accidental
fall of victim in the well. In other words, the simple mention
over telephone to the police that the victim is found in the well
cannot be taken as negating the entire case of prosecution as
spelt out by PW-3 - the first informant. Moreover, at the cost of
repetition, it may be mentioned that his evidence is corroborated
by the substantive evidence of PW-1, PW-2 and PW-4.
13. It is also argued that the motive has not been
established by the prosecution and it is a relevant factor
considering the case of prosecution based on circumstantial
evidence. In order to substantiate this argument, it is brought to
our notice that even according to the admissions given by
prosecution witnesses, appellants/accused had their own
agricultural lands and also had a tractor of their own and as such
it was improbable that the appellants/accused will demand Rs.2
lakhs from the parents of Kalpana. In our considered view, it
cannot be accepted that a person having sufficient means or is
15 / 21
APEAL.615-07JUDGMENT.doc
financially well will not ask for money from somebody else.
This demand or otherwise of Rs.2 lakhs is to be tested on the
available material produced during the trial. In that process
again the substantive evidence of PW-2, PW-3 & PW-4 is of much
importance wherein they have categorically stated regarding
such demands and for this there was physical assault on the
victim. The physical assault on the victim is apparently
substantiated by the evidence of Dr. Vasant Karande as during
postmortem he had observed various injuries which were caused
six hours prior to the death and those injuries were caused
when victim was alive. Moreover as per the expert opinion of
PW-1, he had mentioned the approximate time of death as 30
hours prior to the time of conducting the postmortem. The
postmortem was conducted on 7.8.2005 at 11:00 a.m.. Hence,
according to this witness the probable time of death is 5:00 a.m.
on 6.8.2005. On this aspect the substantive evidence of PW-1 is
reproduced hereunder with advantage :
"I found watery fluid oozing slight muddy from mouth
and nostrils. I also found cutes anserina on palm and sole
and slightly on exposed part of body. I found injuries as
16 / 21
APEAL.615-07JUDGMENT.doc
below. Surface wounds and injuries
1) CLW on left both eye lids laterally 1 cm x 0.2 cm x 0.2 cm
redish with subconjunctival haematoma laterally.
2) contusions i) on left maxilla. 1.5 x 0.5 cm bluish
ii) on left deltoid region, laterally 4 cm x 2.5 cm bluish. Age
of 1st and second injuries within 6 hours before death. Age of
injury is approximately. The object was hard and blunt for
injury No.1 and blunt for injury No.2. Nature of injury -
simple.
3) Healing contusion with nacrosed part of skin is washed
out in water. So appeared white.
i) on chest right lower, laterally, rib level 7 th and 8th 2.5 cm
round with irregular edge.
ii) left knee region above front 1.5 cm round irregular edge.
iii) right forearm middle 3rd laterally 1 cm round.
iv) Left thigh upper 3 rd fronto laterally with irregular edge.
1.5 cm
v) above left iliac crest, 1 cm round with irregular edge.
vi) Forearm middle 3rd laterally. 0.5 cm round irregular edge.
Vii) Right popliteal fossa vertical 2 x 0.5 cm irregular edge.
Age of injuries 2 to 3 days before death. object blunt. Nature
was simple. Wounds with irregular edge.
4) wounds with irregular edge with bleeding on
i) both ears, lobe and pinna
ii) on both lips
17 / 21
APEAL.615-07JUDGMENT.doc
iii) at and between right III, IV & V toes and left II, III, IV
and toes
these wounds are after death caused by water animals as
eaten."
. In our considered view, these injuries cannot be
possible if it is a case of accidental fall in the well.
14. During the arguments, on behalf of the appellants,
following authorities are cited before us on the aspect of
appreciation of evidence of confession. These authorities are ::
[i] AIR 1952 SUPREME COURT 159
[Kashmira singh Vs. The State of M.P.]
[ii] AIR 1956 SUPREME COURT 56
[Nathu Vs. State of U.P.]
[iii] AIR 1964 SUPREME COURT 1184
[Haricharan Kurmi Vs. State of Bihar]
[iv] AIR 1982 SC 1595
[Heramba Brahma & Anr. Vs. State of Assam]
[v] 1995 Supp (4) Supreme Court Cases 519
[Chhitar Vs. State of Rajasthan]
[vi] 1996 AIR 607
[Balwinder Singh Vs. State of Punjab]
[vii] Pancho Vs. State of Haryana
[Supreme Court, decided on 20.10.2011
. There is no doubt that the evidence of accomplice or
the confessional statement of an accused is required to be
18 / 21
APEAL.615-07JUDGMENT.doc
viewed with circumspection and it must be said that whether
or not to accept such confessional statement depends on the
facts and circumstances of a particular case. In the present
matter, the circumstances are such that but for the extra-
judicial confession given by appellant/orig.accused No.3, there
would not have been any clue to find the dead body of victim
Kalpana.
15.
Further, on the aspect as to alleged inimical terms
between PW-2 Muralidhar on one side and the family of
appellants/accused on the other side, the ratio of the following
authority was taken shelter of. Said authority is as follows :
[i] (1975) 4 Supreme Court Cases 511
[Balaka Singh & Ors. Vs. The State of Punjab]
. At the cost of repetition it must be mentioned that
apart from mere suggestion, there is nothing brought on record
that said PW-2 Muralidhar was on so severe inimical terms with
the family of appellants so as to falsely allege the charge of
murder. Moreover, it would be far fetched to accept that the
complainant PW-3 Pandharinath would act on the say of said PW-
19 / 21
APEAL.615-07JUDGMENT.doc
2 Muralidhar.
16. Considering the evidence led before the trial Court and
considering the reasonings given while convicting the
appellants/accused for the offences charged, in our considered
view, there is nothing to come to the different conclusion more
so when there is no any plausible explanation coming from the
appellants/accused as to how and under what circumstances
victim Kalpana died and that also by drowning in the well
situate in the neighbouring field belonging to her father
Pandharinath. Definitely this non-explanation on the part of the
appellants/accused is required to be construed as a mitigating
circumstance to the defence raised on behalf of the appellants.
17. In any event, there is nothing to interfere with the
impugned judgment and order and as such there is no merit in
the present appeal and the same is accordingly disposed of with
following order :-
:: O R D E R ::
[i] Criminal Appeal No.615/2007 stands dismissed and
disposed of accordingly. Criminal Application
20 / 21
APEAL.615-07JUDGMENT.doc
No.1577/2012 also stands dismissed as infructuous.
[ii] Appellant Nos.2 & 3/orig.accused Nos.3 & 4 are on bail.
The Adhoc Additional Sessions Judge-3, Nashik is
directed to issue appropriate process against them for
taking them in custody to suffer the sentence awarded
in the impugned judgment and order.
[iii] Writ of order is expedited.
[iv] Present judgment and order be forthwith communicated
to the Adhoc Additional Sessions Judge-3, Nashik as
well as to the appellant/accused through the concerned
jail authorities where the appellant/accused is presently
lodged.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
21 / 21
